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Strict and Absolute Liability in Criminal Law: Understanding Offences and Factors, Summaries of Criminal Law

Deakin University (DU)Criminal Law

A summary of strict liability and absolute liability offences in criminal law. It discusses the importance of the words of the statute, maximum penalties, utility in making the offence strict liability, harm sought to be prevented, and moral culpability in determining if an offence is one of strict liability. The document also covers the proudman defence and its essential elements.

Typology: Summaries

2021/2022

Uploaded on 07/05/2022

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1!
Criminal(Law(Summary(Notes(
(
Strict&Liability!and$Absolute$Liability$
Offences(
!
Strict&Liability&Offences&
!
Strict!Liability!crimes!are!those!that,!by!way!of!express!statutory!statement!or!
judicial!interpretation,!do!not!require!proof!of!fault.!!
!
Therefore!a!crime!of!strict!liability!is!one,!which!by!definition!does!not!require!
the!prosecution!to!prove!that!the!accused!acted!with!ordinary!negligence!or!any!
of!the!recognised!mens!reas.!!
!
Nearly!all!strict!liability!offences!exist!in!statutory!form!
!
The!issue!of!whether!a!statutory!offence!is!one!of!strict!liability!arises!where!an!
offence!does!not!expressly!include!negligence!or!a!mens!rea!as!one!of!it!
constituent!elements.!
!
At!common!law!there!is!a!rebuttable!presumption!that!all!statutory!offence!
require!proof!of!a!mens!rea!(He#Kaw#Teh#v#The#Queen"(1985)"157"CLR"523).!!
!
Factors&relevant&to&determining&if&an&offence&is&one&of&strict&liability&
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Factors"the"court"takes"into"account:"
"
• The!words!of!the!statute!!
• The!severity!of!the!penalty!
• The!utility!in!making!the!offence!strict!liability!
• The!harm!sought!to!be!prevented!
• Moral!culpability!
!
!
!
!
!
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Criminal Law Summary Notes

Strict Liability and Absolute Liability

Offences

Strict Liability Offences

Strict Liability crimes are those that, by way of express statutory statement or judicial interpretation, do not require proof of fault. Therefore a crime of strict liability is one, which by definition does not require the prosecution to prove that the accused acted with ordinary negligence or any of the recognised mens reas. Nearly all strict liability offences exist in statutory form The issue of whether a statutory offence is one of strict liability arises where an offence does not expressly include negligence or a mens rea as one of it constituent elements. At common law there is a rebuttable presumption that all statutory offence require proof of a mens rea ( He Kaw Teh v The Queen (1985) 157 CLR 52 3 ).

Factors relevant to determining if an offence is one of strict liability

Factors the court takes into account:

  • The words of the statute
  • The severity of the penalty
  • The utility in making the offence strict liability
  • The harm sought to be prevented
  • Moral culpability

Words of the statute In determining whether an offence is one of strict liability, the words of the statute are obviously paramount. -­‐It could be argued that the failure of the legislature to expressly incorporate a fault element leads inexorably to the conclusion that it intended the offence to be one of strict liability ( Mayer v Marchant (1973) 5 SASR 567 at 585). -­‐It can also be argued that had the legislature intended to include a fault element, it would have done so expressly. Given that the legislature would be aware of the common law presumption that all offences require a mens rea element ( Sweet v Parsley [1970] AC 132). Maximum penalty The higher the penalty, the less likely it is that the offence does not require a mens rea element ( He Kaw Teh v The Queen (1985) 157 CLR 523). Thus, where an offence is punishable by a term of imprisonment, this is a factor that militates strongly in the favour of the presumption that proof of a mens rea is required. The utility in making the offence strict liability As a major objective of criminalizing conduct is to deter people from engaging in that conduct, the common law presumption that all offences require mens rea will only be displaced if people are able to take measures to prevent the actus reus occurring. It was held in He Kaw Teh , that such a legislative intent will only be found in instances where an accused can take reasonable measures to prevent the actus reus from coming into existence ( He Kaw Teh v The Queen (1985) 157 CLR 523). Accordingly offences, which make one liable for the conduct of others, are unlikely to be construed as ones of strict liability. The harm sought to be prevented In R v Kennedy the Court took the view that the greater the social harm to which the offence is directed, the less likely it is that the offence requires mens rea ( R v Kennedy [1981] VR 565). In He Kaw Teh , the High Court took the opposite approach. The greater the social harm that the offence seeks to prevent, the greater the penalty that is normally attached to the offence and, hence, the less likely it is that the offence will be found to be one of strict liability ( He Kaw Teh v The Queen (1985) 157 CLR 523).